Is the rule of precedent or concurrent payment, under our State Constitution, an inflexible rule? That it is not so, see Cooley on Constitutional Limitations, pp. 560, 562-4. On page 562 this author says that " this is not an inflexible rule."
Of course the rule must be inflexible, or else it rests with the Legislatureto determine, within reasonable limits, how and in what way payment must be secured.
In some cases, as where there are conflicting claims of title, it seems generally conceded that the payment of the appraised amount into court satisfies the constitutional requirement, whether the estate is a mere fee simple or a leasehold, long or short.
The difference in phraseology in other State constitutions is noticed on page 563 (note) of Judge Cooley's work.
The argument of petitioners is that the court should insert the word " first" in the clause of our State Constitution where the framers of the instrument have omitted it.
It is said by the same author, that there is a difference between the case of taking by the public for the State, county, or city, and taking for a quasi-public corporation owned by private persons.
Where is the ground for this? The property is taken for public use in both cases, and must be so regarded, or there would be no right to take at all. The Constitution lays down one rule for all cases. (2 Kent's Com. 340-1; Smith's Com. 474, 486; Sedgwick, 525-6; Bloodgood v. Mohawk & H. R. R. Co., 18 Wend. 16, 37, 76-8.)
OPINION By the Court:
It is not necessary, in this case, to decide whether, under the Constitution of California, it is essential to the validity of a law for the exercise of eminent domain (when the property is taken directly by the State or by a municipal corporation by State authority), that it should provide for tender of pecuniary compensation before actual taking.
When property is taken by a private corporation, which, although for this purpose it is regarded as the agent of the State, appropriates it as well for the benefit and profit of the members of the corporation as for the public use, it is at least essential that an adequate fund (in the custody of an agent of the public other than the corporation or its officers) be provided, from which the owner of the property can certainly obtain compensation. As remarked by Mr. Justice Cooley: " It is not competent to deprive him (the citizen) of his property, and turn him over to an action at law against a corporation, which may or may not prove responsible, and to a judgment of uncertain efficacy." (Con. Lim. 562.)
We are satisfied that wise policy and sound constitutional principles require us to hold that a bond, executed by sureties who may be supposed to be, or who in fact may be, responsible, when the preliminary order is made, does not constitute a certain and adequate compensation.
If the corporation has acted on the order of the district judge, the property of the petitioners has been actually taken. (San Mateo Water Co. v. Sharpstein , 50 Cal. 284.)
If it be competent to the Legislature to declare that a mere bond shall constitute compensation upon a taking at the commencement of the condemnation proceedings, it might also declare that such bonds should constitute compensation upon the final taking--which would operate a plain violation of the provisions of the Constitution restraining the exercise of eminent domain.
Order annulled.